Consumer rights group suing Turkish Airlines over flight delay compensation ({{contentCtrl.commentsTotal}})

Turkish Airlines
Turkish Airlines

Estonian passengers whose flights with Turkish Airlines were canceled or delayed have not received the compensation that the airline is due to pay them, a consumer rights group says. Now the group is suing the airline.

Lennuabi OÜ, which deals with compensation claims from passengers, has now sued the airline on their behalf.

 Turkish Airlines has responded by delaying the pre-trial proceedings, Lennuabi says, which are due to take place in a first-tier Estonian county court.

Sixty-two Estonian air passengers whose flights with Turkish Airlines in 2019 were either canceled or delayed extensively, in some cases forcing them to miss connecting flights, have approached Lennuabi for assistance. As communication with Turkish Airlines proved difficult and the airline refused to compensate the passengers, Lennuabi filed a lawsuit against the carrier.

The total claim filed by the company against the airline comes to almost €30,000, averaging €400-600 per applicant, depending on the length of their flight.

Lennuabi's CEO Karl Gustav Annus says that there have been problems with all airlines, but when a claim has ended up in court, other airlines have remained reasonable and polite in their demands, whereas Turkish Airlines requires passengers to provide proof of circumstances – something which the airline is already perfectly well aware of.

Flights from January to September 2019

This means that a court case was the last resort. Initially, Lennuabi sought to obtain compensation for missed or delayed flights via applications on behalf of passengers who approached it for assistance. The flights for which compensation was claimed covered the period January to September 2019.

"After we made a claim to the airline, it took several months to get even an initial response from them. Then they started to demand some strange documents. When we sent the requested documents that they had demanded, the airline went into silent mode again," says Annus, describing the rough path in dealing with Turkish Airlines.

Annus said that even in the pre-trial proceedings, the airline used delaying tactics and acted unreasonably.

"They are running a circus there," is Annus' assessment of the behavior of the airline, citing absurd claims where, among other things, the airline requires passengers to prove to the court how far the distance between Tallinn and Istanbul is, although the airline knows this full well, he says.

Mired in technicalities

Another demand made by Turkish Airlines is to translate into Estonian booking confirmations or airline tickets purchased through their own website for the court, even though they had issued them to customers in English.

"We keep producing papers, but it is completely unnecessary," Annus continued on the airline's seeming delaying tactics.

While in the past it has been possible to agree on compensation for delays or missed flights with an airline outside the court, the situation changed in 2019, hence Lennuabi filing a lawsuit on December 23, 2019, after the company promised to customers to fight for their rights to the end while using all available options of the justice system.

"We will go on to the end. We will argue until justice is served," Annus promised.

The application is currently in court in its pre-trial proceeding phase, but has not yet been heard. Meanwhile, Turkish Airlines claims in its own marketing that it is one of the most polite and best airlines in Europe. Annus says that he felt that he has had just about his fill of the airline misleading its customers with advertising.

"Many low-cost airlines such as WizzAir are much more polite in their handling of things," adds Annus, who says he has had to help customers with compensation claims against all major airlines in Europe.

"There have been court cases with all airlines that fly to Tallinn. With others, there has always been a fine line of reasonability, while others have been relatively constructive. Turkish Airlines is different from others and is the only one that stands out with such nonsense," Annus says.

Lawyer: Would be farcical to expect data requested by Turkish Airlines from average passenger

Lennuabi is represented in court by law firm Cobalt. Artur Knjazev, a lawyer from the firm, says that it is usually enough to make a claim on behalf of passengers with the personal data of air passengers, flight and reservation numbers, flight dates and the amount of compensation claimed.

"Usually the dispute is limited to whether on some flights there were exceptional circumstances which prevent or entitle the airline to refuse compensation. Turkish Airlines has insisted that this level of detail is not enough," says Knjazev.

Turkish Airlines namely requires that it is established for each passenger whether he or she actually appeared at the time scheduled for check-in and whether the flight was delayed by as much as Lennuabi claims in its application for compensation.

"The problem is that usually average air passengers do not obtain evidence on the spot at the airport, for example, by recording on their phone or taking a photo showing how much his or her flight was delayed by. It is assumed that if the flight is delayed, it is possible to fill out an application on the spot and ask for compensation. This is usually enough for an airline," Knjazev adds.

"In the present case, it is almost impossible for an ordinary air passenger to prove all the facts requested by Turkish Airlines; he or she does not have that information. The passenger may at best remember how much the flight was delayed by, but he or she cannot reasonably prove it. This presupposes that the air passenger has prepared for litigation as soon after the aircraft has landed."

Knjazev explains that there is a certain methodology for measuring flight delays: It is measured by the opening of the cabin doors after the aircraft has landed, ie. when passengers can actually leave the aircraft. To do this, the passenger should know this precisely, in order to calculate the delay of the aircraft to the nearest minute, but also be able prove it in some way. The airline itself knows the exact time of the delay.

"Then I guess you should film it all, but an objection could be raised that it is unreliable evidence. It goes to extremes, which is unreasonable," says Knjazev. "Turkish Airlines has all the information: Who its passengers are, what happened to their flights, whether they arrived on time, whether they were late and by how much. If they know it themselves, but demand that Lennuabi must prove it in detail, it is very mean in the general context of things."

Tickets often part of a package tour, obscuring original price

In addition, customers must prove that they paid a normal fee for a flight ticket. Namely, the EU regulation stipulates that if air passengers who traveled free of charge or at a reduced price, are not entitled to compensation in case of flight delay or cancellation. According to Knjazev, this demand from the airline to the customer is also not viable.

"As far as Lennuabi knows, all passengers paid for the trip, but at times it is totally impossible for them to prove how much the ticket cost, as these have often been package tours with accommodation or onward travel included in the price. Information on how much the plane ticket cost cannot even be disclosed by the tour operator, as it is protected by a trade secret. They do not publish the prices of their partners. In essence, it is impossible for an air passenger to prove that the price was normal or not. It should be up to the airline to know if it has issued the ticket, because the airline presumably knows at what price it is flying its passengers. It is clearly unreasonable for a passenger to prove it," says Knjazev.

The icing on the cake, Lennuabi says, is the demand from Turkish Airlines that the plaintiff must submit to the court Estonian translations of reservations and tickets in English, because the [Estonian] court's language of work is obviously Estonian. Lennuabi has now also provided these translations as well.

The Estonian court system stipulates that the entire burden of proof lies with the plaintiff, which is why the airline can demand all this from the passenger representative. Previously, no airline which has been sued by Lennuabi in court has demanded such detailed information about the customers as proof that the claim is substantiated.

Turkish Airlines lawyers: We are not delaying

Representatives of Turkish Airlines, lawyers Tambet Toomela and Jüri-Karl Leppik of law firm Eversheds Sutherland say they do not want to comment on the content of the dispute in court, but add that they do not agree with Lennuabi's allegation that the airline uses delaying tactics.

"The proper conduct of a dispute presupposes that a proper action has been brought. Lennuabi has not done that. We drew the court's attention to this, including the legal obligation to provide evidence and its translations. According to the case law, the court has an obligation, not a right, to request translations," the lawyers commented in writing on the fact that they requested a translation of the information contained in the tickets.

"To date, Lennuabi has not shown how much each specific flight was delayed. Lennuabi has simply stated 'Flight delayed by four hours' and has not provided any evidence to that effect. This is not correct, because it is not even claimed how long the delay was. It would probably not be difficult for customers who have actually flown a plane to prove when their plane was supposed to arrive at its destination and when it actually arrived. However, Lennuabi does not want to bear this administrative cost and deal with every passenger," the lawyers said in a statement.

"On the other hand, court proceedings are adversarial proceedings and we do not have to submit documents to prove the other party's claims, because according to the law, everyone has to prove their own claims," added Toomela and Leppik.

"Our main goal is to avoid a situation where our customer has to pay compensation to those passengers who don't really deserve it. The fact that we have rightly pointed out the shortcomings of the action is confirmed only by the fact that Lennuabi has already waived some of its claims. It is likely that Lennuabi itself acknowledged during the inspection that some passengers are not entitled to compensation - in the past, the number of passengers for whom compensation was claimed was higher."

Lennuabi explained that they had initially asked claims for 64 air passengers, but in case of two passengers further review showed that their delays were shorter than required to implement the compensation rules.

"The time of delay of two air passengers was probably incorrectly indicated due to the abundance of data and human error, after which Lennuabi immediately waived the claim of two air passengers. The remaining 62 claims for compensation stand in the proceedings," says Artur Knjazev, attorney at law representing Lennuabi.

Passengers have right to decline travel vouchers under EU law

Following the filing of the claim, Turkish Airlines has expressed its readiness to provide passengers whose right to compensation is proven in detail not financial compensation, but travel vouchers.

"However, this offer applies only to passengers for whom it is specifically proven that they reached their destination late or whose flight has been canceled. We do not know whether Lennuabi has introduced this possibility to its customers at all. In any case, Lennuabi did not accept the offer which is clearly in the interests of passengers - the value of the voucher would be higher than what Lennuabi would later pay passengers out in cash. Lennuabi did not agree with the proposal, because it is in the interests of Lennuabi to keep part of the passengers' financial compensation," the pair continued.

Accepting a gift voucher means that a person can use it only to travel with Turkish Airlines and cannot withdraw it in cash.

Plenty of airlines made use of the same option and offered their customers gift cards in the spring, when their flights were canceled due to the coronavirus pandemic.

However, under EU law, consumers have the right to claim financial compensation for a canceled or delayed flight, and the airline cannot replace this with a gift voucher if the customer does not wish to accept it. In other words, a gift card voucher be offered, but the passenger has the right to refuse it and still claim financial compensation to the amount provided for in the EU regulation.

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Editor: Andrew Whyte

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